[CIRP Note: The British Medical Association
issued this guidance for its members on 4 April 2003. The BMA
revised this statement in June 2006 with the addition of
additional language regarding the possible unlawfulness of
non-therapeutic circumcision in the United Kingdom. That
additional language is shown in green print.]

The law & ethics of male circumcision - guidance for
doctors

Aim of the
guidelines

One of the BMA's roles is to issue guidance to doctors on
ethical and medico-legal issues. Accordingly, this guidance
addresses the queries medical practitioners raise with the
BMA about both therapeutic and non-therapeutic[1] male circumcision. The two procedures raise
different issues. It does not cover circumcision carried out
by non-medical practitioners, but we note that there may be
no requirement in law for these practitioners to have proven
expertise. Nor does the guidance address female genital
mutilation, that is sometimes referred to as female
circumcision.[2]

Circumcision of male babies and
children at the request of their parents is an increasingly
controversial area and strongly opposing views about
circumcision are found within society and within the BMA's
membership. The medical evidence about its health
impact is equivocal.

As with any aspect of medical practice, doctors must use
their skills in a way that promotes their patients'
interests. They must act within the boundaries of the law and
their own conscience, and weigh the benefits and harms of
circumcision for the particular child. This guidance outlines
good practice and safeguards which the BMA believes doctors
should follow in the circumcision of male babies and
children.

The General Medical Council has also issued advice on
circumcision,[3] and advocates similar
safeguards to those suggested here.

Principles of good practice
- The welfare of child patients is paramount and doctors
must act in the child's best interests.
- Children who are able to be express views about
circumcision should be involved in the decision-making
process.
- Consent for circumcision is valid only where the people
(or person) giving consent have the authority to do so and
understand the implications and risks.
- Both parents[4] must give consent for
non-therapeutic circumcision.
- Where people with parental responsibility for a child
disagree about whether he should be circumcised, doctors
should not circumcise the child without the leave of a
court.
- As with all medical procedures, doctors must act in
accordance with good clinical practice and provide adequate
pain control and aftercare.
- Doctors must make accurate, contemporaneous notes of
discussions, consent, the procedure and its aftercare.

Circumcision for medical purposes
Unnecessarily invasive procedures should not be used where
alternative, less invasive techniques, are equally efficient
and available. It is important that doctors keep up to date
and ensure that any decisions to undertake an invasive
procedure are based on the best available evidence.
Therefore, to circumcise for therapeutic reasons where
medical research has shown other techniques to be at least as
effective and less invasive would be unethical and
inappropriate.

Male circumcision in cases where there is a clear clinical
need is not normally controversial. Nevertheless, normal
anatomical and physiological characteristics of the infant
foreskin have in the past been misinterpreted as being
abnormal. The British Association of
Paediatric Surgeons advises that there is rarely a clinical
indication for circumcision.[5]
Doctors should be aware of this and reassure parents
accordingly.

If there is doubt about whether treatment is needed, or what
is the most appropriate course of management, specialist
advice should be sought. It is recommended that circumcision
for medical purposes must only be performed by or under the
supervision of doctors trained in children's surgery in
premises suitable for surgical procedures.[6]

Non-therapeutic
circumcision
Male circumcision that is performed for any reason other
than physical clinical need is termed non-therapeutic (or
sometimes "ritual") circumcision. Some people ask for
non-therapeutic circumcision for religious reasons, some to
incorporate a child into a community, and some want their
sons to be like their fathers. Circumcision is a defining
feature of some faiths.

There is a spectrum of views within the BMA's membership
about whether non-therapeutic male circumcision is a
beneficial, neutral or harmful procedure or whether it is
superfluous, and whether it should ever
be done on a child who is not capable of deciding for
himself. The medical harms or benefits have not been
unequivocally proven except to the extent that there are
clear risks of harm if the procedure is done inexpertly. The
Association has no policy on these issues. Indeed, it would
be difficult to formulate a policy in the absence of
unambiguously clear and consistent medical data on the
implications of the intervention. As a general rule, however,
the BMA believes that parents should be entitled to make
choices about how best to promote their children's interests,
and it is for society to decide what limits should be imposed
on parental choices. What those limits currently are is
discussed below, together with the legal and ethical
considerations for doctors asked to perform non-therapeutic
circumcision.

The
law

It is presently generally accepted
that non-therapeutic circumcision is lawful.Male circumcision is not grounded in statute,
however judicial review assumes that, provided both parents
consent, non-therapeutic male circumcision is
lawful.

"Even when violence is intentionally afflicted and
results in actual bodily harm, wounding or serious bodily
harm the accused is entitled to be acquitted if the
injury was a foreseeable incident of a lawful activity in
which the person injured was participating. Surgery
involves intentional violence resulting in actual or
sometimes serious bodily harm but surgery is a lawful
activity. Other activities carried on with consent by or
on behalf of the injured person have been accepted as
lawful notwithstanding that they involve actual bodily
harm or may cause serious bodily harm. Ritual
circumcision, tattooing, ear-piercing and violent sports
including boxing are lawful activities".[7]

This comment was made in passing by a judge considering a
case about the extent to which a person could consent to
physical interference by another and was relied on by a judge
in a subsequent case considering the religious circumcision
of a 5 year old boy whose parents disagreed.[8] In that case the judge concluded that "as
an exercise of joint parental responsibility, male ritual
circumcision is lawful". This approach
was followed by the Court of Appeal in the case of Re S.[9] Following divorce a Muslim mother applied
for permission for her 8 year old son to be circumcised. The
son’s father opposed and the opposition was held on the
basis that the mother’s application stemmed from the
mother’s need to portray herself as a practicing Muslim
rather than the son’s best interests.[10]

The lawfulness of the procedure is
challenged by some, however,Despite the common law assumption that,
provided both parents consent, the procedure is lawful, the
legality is not uncontroversial and has been challenged by
some. [11] To
end all doubt, in the mid-1990s the English Law
Commission said that although in its view ritual circumcision
is lawful, law reform to "put the lawfulness of ritual male
circumcision beyond any doubt" would be useful.[12] This, however, has not been
forthcoming.

With the exception of Re
S, these legal cases were heard before the
implementation of the Human Rights Act which, in 2000,
incorporated Articles of the European Convention on Human
Rights [13] into UK law. Doctors must
consider whether their decisions impact on a person's human
rights and, if so, whether the interference can be justified.
Rights that might be relevant to non-therapeutic circumcision
include:
- Article 3: "No one shall be subjected to torture or to
inhuman or degrading treatment or punishment"
- Article 5(1): "Everyone has the right to liberty and
security of the person"
- Article 8: "Everyone has the right to respect for his
private and family life" except for the "protection of health
or morals, or for the protection of the rights and freedoms
of others"
- Article 9(1): "Everyone has the right to freedom of
thought, conscience and religion"
- Article 9(2): "Freedom to manifest one's religion or
beliefs shall be subject only to such limitations as are
prescribed by law and are necessary in a democratic society
in the interests of public safety, for the protection of
public order, health or morals, or for
the protection of the rights and freedoms of
others"

Many aspects of good practice – including careful
assessment of best interests, balancing conflicting rights
and consulting with patients and their families – have
taken on added importance as a result of the Human Rights
Act, which makes them a required part of the decision-making
process. As yet, the full impact of the Act on medical
decision making is not known, and the rights in the Act are
used by commentators to both support and reject
non-therapeutic circumcision. One reason why it is not clear
where the balance of rights lies is that the medical evidence
is equivocal. Some argue that circumcision is a relatively
neutral procedure, that, competently performed, carries
little risk but can confer important psychosocial benefits.
Others argue that circumcision has, or can have, profound and
long-lasting adverse effects on the person who has been
circumcised. If it was shown that circumcision where there is
no clinical need is prejudicial to a child's health and
wellbeing, it is likely that a legal challenge on human
rights grounds would be successful. Indeed, if damage to
health were proven, there may be obligations on the state to
proscribe it. The UN Convention on the Rights of the Child,
which has been ratified by the UK, requires ratifying states
to "take all effective and appropriate measures with a view
to abolishing traditional practices prejudicial to the health
of children".[17] At present, however, the
medical evidence is inconclusive.

Summary: the law
Male circumcision is generally assumed to be lawful provided
that:
- it is performed competently;
- it is believed to be in the child's best interests;
and
- there is valid consent.

The Human Rights Act may affect the way
non-therapeutic circumcision is viewed by the courts. There
has been no reported legal case involving circumcision since
the Act came into force. If doctors are
in any doubt about the legality of their actions, they should
seek legal advice.

Consent
and refusal
Consent for any procedure is valid only if the person or
people giving consent understand the nature and implications
of the procedure. To promote such an understanding of
circumcision, parents and children should be provided with
up-to-date written information about the risks. The BMA is
concerned that they may not have easy access to up-to-date
information, however, and has called on appropriate bodies
such as the Royal College of Paediatrics and Child
Health and the British Association of Paediatric
Surgeons to produce an information leaflet.

Children's own consent

All children who are capable of expressing a view should
be involved in decisions about whether they should be
circumcised, and their wishes taken into account. The BMA cannot envisage a situation in which
it is ethically acceptable to circumcise a competent,
informed young person who consistently refuses the
procedure. As with any form of medical treatment,
doctors must balance the harms caused by violating a child's
refusal with the harm caused by not circumcising. Often surgery for non-medical reasons is
deferred until children have sufficient maturity and
understanding to participate in the decision about what
happens to their bodies, and those that are competent to
decide are entitled in law to give consent for
themselves. When assessing competence to decide,
doctors should be aware that parents can exert great
influence on their child's view of treatment. That is not to
say that decisions made with advice from parents are
necessarily in doubt, but that it is important that the
decision is the child's own independent choice.

Parents' consent

Where children cannot decide for themselves, their parents
usually choose for them. Although they usually coincide,
the interests of the child and those of
the parents are not always synonymous. There are,
therefore, limits on parents' rights to choose and parents
are not entitled to demand medical procedures contrary to
their child's best interests.

The BMA and GMC have long recommended that consent should
be sought from both parents. Although parents who have
parental responsibility are usually allowed to take decisions
for their children alone, non-therapeutic circumcision has been
described by the courts as an "important and irreversible"
decision that should not be taken against the wishes of a
parent.[12] It follows that where a
child has two parents with parental responsibility, doctors
considering circumcising a child must satisfy themselves that
both have given valid consent. If a child presents with only
one parent, the doctor must make every effort to contact the
other parent in order to seek consent. If parents disagree
about having their child circumcised, the parent seeking
circumcision could seek a court order authorising the
procedure which would make it lawful, although doctors are
advised to consider carefully whether circumcising against
the wishes of one parent would be in the child's best
interests. Where a child has only one parent, obviously that
person can decide.

In all cases, doctors should ask parents to confirm their
consent in writing by signing a consent form.

Summary: consent and refusal
- Competent children may decide for themselves.
- The wishes that children express must be taken into
account.
- If parents disagree, non-therapeutic circumcision must not
be carried out without the leave of a court.
- Consent should be confirmed in writing.

Best
interests

In the past, circumcision of boys has been considered to
be either medically or socially beneficial or, at least,
neutral. The general perception has been that no significant
harm was caused to the child and therefore with appropriate
consent it could be carried out. The
medical benefits previously claimed, however, have not been
convincingly proven, and it is now widely accepted, including
by the BMA, that this surgical procedure has medical and
psychological risks. It is essential that doctors
perform male circumcision only where this is demonstrably in
the best interests of the child. The
responsibility to demonstrate that non-therapeutic
circumcision is in a particular child's best interests falls
to his parents.

It is important that doctors consider the child's social
and cultural circumstances. Where a child is living in a
culture in which circumcision is required for all males, the
increased acceptance into a family or society that
circumcision can confer is considered to be a strong social
or cultural benefit. Exclusion may cause harm by, for
example, complicating the individual's search for identity
and sense of belonging. Clearly, assessment of such
intangible risks and benefits is complex. On a more practical
level, some people also argue that it is necessary to
consider the effects of a decision not to circumcise. If
there is a risk that a child will be circumcised in
unhygienic or otherwise unsafe conditions, doctors may
consider it better that they carry out the procedure, or
refer to another practitioner, rather than allow the child to
be put at risk.

On the other hand, very similar arguments are also used to
try and justify very harmful cultural procedures, such as
female genital mutilation or ritual scarification.
Furthermore, the harm of denying a person the opportunity to
choose not to be circumcised must also be taken into account,
together with the damage that can be done to the individual's
relationship with his parents and the medical profession if
he feels harmed by the procedure.

The BMA identifies the following as relevant to an
assessment of best interests in relation to non-therapeutic
circumcision:
- the patient's own ascertainable wishes, feelings and
values;
- the patient's ability to understand what is proposed and
weigh up the alternatives;
- the patient's potential to participate in the decision, if
provided with additional support or explanations;
- the patient's physical and emotional needs;
- the risk of harm or suffering for the patient;
- the views of parents and family;
- the implications for the family of performing, and not
performing, the procedure;
- relevant information about the patient's religious or
cultural background; and
- the prioritising of options which maximise the patient's
future opportunities and choices.[13]

The BMA is generally very supportive of allowing parents
to make choices on behalf of their children, and believes
that neither society nor doctors should interfere
unjustifiably in the relationship between parents and their
children. It is clear from the list of factors that are
relevant to a child's best interests, however, that parental preference alone is not sufficient
justification for performing a surgical procedure on a
child.

The courts have also identified some factors that are
important in a decision about circumcision. J was a 5 year
old boy who lived with his mother, a non-practising
Christian. His father, a non-practising Muslim, wanted him to
be circumcised. Asked to decide whether J should be
circumcised, the Court considered all the factors relevant to
J's upbringing and concluded that J should not be circumcised
because of three key facts:
- he was not, and was not likely to be, brought up in the
Muslim religion;
- he was not likely to have such a degree of involvement
with Muslims as to justify circumcising him for social
reasons; and as a result of these factors,
- the "small but definite medical and psychological risks"
of circumcision outweighed the benefits of the procedure.[14]

Summary: best interests
- Doctors must act in the best interests of the
patient.
- Even where they do not decide for themselves, the views that children express are important
in determining what is in their best interests.
- The BMA does not believe that parental preference alone
constitutes sufficient grounds for performing a surgical
procedure on a child unable to express his own view. Parental
preference must be weighed in terms of the child's
interests.
- The courts have confirmed that the child's lifestyle and
likely upbringing are relevant factors to take into account.
The particular situation of the case needs to be
considered.
- Parents must explain and justify requests for
circumcision, in terms of the child's interests.

Health
issues

There is significant disagreement about whether
circumcision is overall a beneficial, neutral or harmful
procedure. At present, the medical literature on the health,
including sexual health, implications of circumcision is
contradictory, and often subject to claims of bias in
research. Doctors performing circumcisions must ensure that
those giving consent are aware of the issues, including the
risks associated with any surgical procedure: pain, bleeding,
surgical mishap and complications of anaesthesia. All
appropriate steps must be taken to minimise these risks. It
may be appropriate to screen patients for conditions that
would substantially increase the risks of circumcision, for
example haemophilia.

Doctors should ensure that any parents seeking
circumcision for their son in the belief that it confers
health benefits are fully informed of the lack of consensus
amongst the profession over such benefits, and how great any
potential benefits and harms are. The
BMA considers that the evidence concerning health benefit
from non-therapeutic circumcision is insufficient for this
alone to be a justification for doing it.

Standards

Doctors unfamiliar with circumcision who are asked about
it should seek advice about the physical risks from doctors
experienced in conducting circumcisions. Religious and
cultural organisations may be able to give advice and suggest
practitioners who perform circumcisions. It may be necessary
to refer a family to a paediatric surgeon, urologist or other
doctor experienced in performing the operation for advice and
care.

Poorly performed circumcisions have legal implications for
the doctor responsible. An action could be brought against
the doctor responsible on the child's behalf if the
circumcision was carried out negligently. Alternatively, the child could issue such
proceedings in his own name on reaching the age of 18 and the
normal time limit for starting legal proceedings would run
from that birthday. However, unless the lawfulness of
circumcision itself is successfully challenged, action cannot
currently be taken against a doctor simply because a man is
unhappy about having been circumcised at all. A valid consent
from a person authorised to give it on the patient's behalf
is legally sufficient in such cases. It goes without saying
that a health professional who is not currently registered
must never give the impression of so being even though there
is no legal requirement for non-therapeutic circumcision to
be undertaken by a registered health professional.

The General Medical Council does not prohibit doctors from
performing non-therapeutic circumcision, although would take
action if a doctor was performing such operations
incompetently. The Council explicitly advises that doctors
must "have the necessary skills and experience both to
perform the operation and use appropriate measures, including
anaesthesia, to minimise pain and discomfort".[15]

Facilities

Doctors must ensure that the premises in which they are
carrying out circumcision are suitable for the purpose. In
particular, if general anaesthesia is used, full
resuscitation facilities must be available.

Charging patients

Although circumcision is not a service which is provided
free of charge, some doctors and hospitals have been willing
to provide circumcision without charge rather than risk the
procedure being carried out in unhygienic conditions. In such
cases doctors must still be able to justify any decision to
circumcise a child based on the considerations above.

Conscientious objection

Some doctors may refuse to perform
non-therapeutic circumcisions for reasons of conscience.
Doctors are under no obligation to comply with a request to
circumcise a child. If doctors are asked to circumcise
a child but have a conscientious objection, they should
explain this to the child and his parents. Doctors may also
explain the background to their conscientious objection if
asked.

Clearly where patients or parents request a medical
procedure, doctors have an obligation to refer on promptly if
they themselves object to it (for example termination of
pregnancy). Where the procedure is not
therapeutic but a matter of patient or parental choice, there
is arguably no ethical obligation to refer on. The
family is, of course, free to see another doctor and some
doctors may wish to suggest an alternative practitioner.

Notes and
references

June 2006

By "therapeutic" we mean that
the procedure is necessary to deal specifically with a
medical problem. By "non-therapeutic" we mean that the
procedure is for any other purpose than medical
benefit.

The term "parents" is used in
these guidelines to indicate holders of parental
responsibility. Both of a child's parents have parental
responsibility if they were married at the time of the
child's conception, or at some time thereafter. Neither
parent loses parental responsibility if they divorce. If
the parents have never married, only the mother
automatically has parental responsibility. The father may
acquire it in various ways, including by entering into a
parental responsibility agreement with the mother, or
through a parental responsibility order made by a court.
Additionally in Northern Ireland, fathers who are named on
the child's birth certificate (from 15 April 2002 onwards)
automatically have parental responsibility. Similar
arrangements will apply in England and Wales once the
relevant provisions of the Adoption and Children Act 2002 come
into force. At the time of writing, there is no definite
timescale for this. Scotland has also indicated its
intention to introduce theses arrangements. Information
about any changes will be put on the BMA's website. Clearly
where a child has only one parent with parental
responsibility, that person is responsible for decision
making, although his or her views may not be
determinative.

British Association of
Paediatric Surgeons, Royal College of Nursing, Royal
College of Paediatrics and Child Health, Royal College of
Surgeons of England and Royal College of Anaesthetists. Statement on male
circumcision. London: Royal College of Surgeons of
England, March 2001.